MCKENZIE v. CITY OF CHICAGO

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

July 31, 1997

KEITH MCKENZIE, REV. DANIEL VINSON, JOHN and BEVERLY DEMARCO, as beneficiaries of MARQUETTE NATIONAL BANK A/T/U/T 3422, HONEYWOOD DEVELOPMENT CORP., ROBERT LEWIS, and WILBURN RICHARDS, on behalf of themselves and others similarly situated, Plaintiffs,
v.
THE CITY OF CHICAGO, a municipal corporation, RICHARD M. DALEY, individually and as Mayor of the City of Chicago, CHERRYL THOMAS, individually and as Building Commissioner of the City of Chicago, RON MCDERMOTT, individually and head of the Fast Track Demolition Program of the City of Chicago, and JOHN DOES 1 - 20, Defendants.

The City first asks that the plaintiffs' facial challenge to the Ordinance be dismissed because, as a matter of law, the Ordinance is constitutional as written. The test that a facial challenge must meet is demanding. "A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). When a statute is reasonably capable of a construction compatible with the Constitution, the courts are required to so construe it. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 68 L. Ed. 2d 612, 101 S. Ct. 2142 (1981). Applying this high standard to the case at bar requires us to construe the statute in a manner that enables it to avoid constitutional defects, and we accordingly dismiss the plaintiffs' facial challenges.

As we have discussed in our earlier opinions in this case, the essence of due process is notice of a deprivation and an opportunity to be heard in order to prevent, if possible, a wrongful deprivation. "'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" Fuentes v. Shevin, 407 U.S. 67, 80, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972) (quoting Baldwin v. Hale, 68 U.S. 223, 1 Wall. 223, 233, 17 L. Ed. 531 (1863)). The notice and opportunity for a hearing "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965).

65 ILCS 5/11-31-1(e); Chi. Mun. Code § 13-9-010. The procedure for obtaining a hearing is to "file [an] objection in an appropriate form in a court of competent jurisdiction." Id.

In our previous opinion dated May 5, 1997, we held that nothing in the Ordinance's required manner of providing notice (by posting, by letter and by publication) was unconstitutional on its face. We reaffirm that opinion here. Nevertheless, the content of the notice provided, as specified by the Ordinance, gives us some pause. Most notably, the Ordinance fails to require that the notice alert the owner to his or her right to bring a legal action to prevent the threatened action, and provide information about the procedures for obtaining the hearing. It is elementary that the right to a hearing is meaningless without notice of that right. This is especially true where, as here, time is of the essence in preventing a deprivation of property under the scheme established by the Ordinance. The Ordinance also fails to require that the notice identify with specificity the problems with the building that led to the Building Commissioner's order. The Supreme Court has noted that, in defending less tangible forms of property such as employment or education, a person is entitled to notice of the precise acts of wrongdoing upon which the deprivation is based. See, e.g., Gilbert v. Homar, U.S. , 117 S. Ct. 1807, 1811, 138 L. Ed. 2d 120 (1997) (in order to comply with the dictates of due process, the pretermination process must include notice of the charges and an explanation of the employer's evidence) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985)); Goss v. Lopez, 419 U.S. 565, 582, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975) (before being suspended, a student must be "told what he is accused of doing and what the basis of the accusation is"). In this situation, where the notices required by the Ordinance are likely to be the only notice of impending demolition that a property owner will receive prior to the deprivation, the concern for fairness that underlies procedural due process jurisprudence requires that notice of the precise problems to be remedied in order to stave off demolition be provided to the property owner up front. A building owner could well be confused as to how to comply with the notice's instructions to "demolish, repair, or enclose" the building without some idea of the condition that the City desires to have addressed. In this regard, we note that the Wisconsin statute upheld in Baker v. Mueller, 222 F.2d 180 (7th Cir. 1955), requires the municipality's order to "specify repairs" that are to be performed. See WISC. STAT. ANN. § 66.05(1m)(a) (1996). Likewise, the notice should state exactly what action the City will take if the owner does not comply with the order. A notice that "the building may be demolished, repaired, or enclosed, or any garbage, debris, and other hazardous, noxious, or unhealthy substances or material may be removed," 65 ILCS 5/11-31-1(e); Chi. Mun. Code § 13-9-010, does not adequately inform the property owner that the City intends to demolish the building, if that is in fact what the City intends to do.

In evaluating this argument, however, we are bound by precedent that prevents us from declaring a statute unconstitutional unless it is incapable of any valid application. United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). Courts have often gone to great lengths to uphold a statute when there was even one set of circumstances in which it might it constitutional. See, e.g., Chemical Waste Management, Inc. v. United States Environmental Protection Agency, 312 U.S. App. D.C. 364, 56 F.3d 1434, 1437 (D.C. Cir. 1995) (finding a regulation with serious and obvious problems not facially unconstitutional because those problems might not arise in one narrow set of circumstances). Because there are situations in which the hearing procedure established by the Ordinance might not unduly burden an individual's ability to exercise the right to that hearing--such as if the property owner were legally sophisticated, or had sufficient resources that the filing fee was not a deterrent, or if the property owner did not want a hearing at all--we find that the above flaws in the hearing procedure do not render the Ordinance unconstitutional on its face. Thus, we grant the City's motion to dismiss those portions of Counts I and V related to the plaintiffs' facial challenge to the Ordinance.

The defendants' motion for partial dismissal of the amended complaint is granted in part and denied in part. The motion is granted insofar as it sought the dismissal of those portions of Counts I and V related to a challenge to the Ordinance as written. The Ordinance is constitutional on its face, subject to the construction we have placed upon the Ordinance. The remainder of the motion to dismiss is denied.

ENTER:

Ruben Castillo

United States District Judge

July 31, 1997

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.